£1000 DAMAGES.

Dominion, Volume 3, Issue 770, 19 March 1910, Page 3

£1000 DAMAGES.

END OF THE "ZOO ,, LIBEL CASE STRONG SUMMING UP. ' JUDGE KEEPS COUNSEL TO THE :'. '- POINT. .:■-.. ■ . , \ - . Finality was reached yesterday in the libel action in which Albert Ernest Louis Bertling,. Superintendent of the Zoo at Newtown Park, claimed damages from John Norton, of Sydney, proprietor of .a newspaper 'called "New Zealand. Truth." The case, which was heard by the Chief Justice, Sir Robert Stout, and a special jury of twelve,- lasted three days.

Mr. H. H. Ostler and Mr. P. B. Sharp appeared for Bertling, the plaintiff; Mr. T. M. Wilford and Mi. A. Dunn for Norton, defendant. . Bertling alleged that libellous articles had been repeated in four issues of the paper, and he had consequently been damaged in! his profession. The defence set out that, the articles contained statements of fact, and that any comment embodied was fair. . . ' A Legal Stage Property: Its Fate. On resuming, at 10 o'clock yesterday, Mr. Wilford asked permission to recall Alexander Yuill, taxidermist at Newtown Museum, to. produce'a mounted iguana, "the actual one that came from the Zoo." The witness said that about half of the teeth were missing from the specimen, and there were marks upon it caused-by an ; instrument. His Honour: I don't see what this is for at all. . .Wβ' have had clear evidence from Bertling that Jackson used an instrument, and. that he stopped him. The witness having concluded his evidence, his Honour ordered that the staffed iguana should be removed. Mr. Wilford:- May I have it left there, sir? I want it in my address. (Laughter.) ■■■.-■:•:.-, His Honour: Take it outside until Mr. Wilford .begins his address to the jury. (Laughter.) . Mr. Wilford: It-is perfectly harmless, I think, your Honour. ■ ■ The- specimen was removed from court. ■- Eichard Henry Jackson, formerly a keeper at: Newtown Zoo, stated, that the iguanas were "crammed 'with chopped meat." Their mouths had to be forced open, and on. one occasion Bertling used a flat file. Witness added particulars as to the treatment of the cockatoo, given by a Boseneath resident,, and. other birds.

Mr. Dunn: Was it part o£ your duty to feed the lionP-'Tes/ 5 What was the amount, of meat allowed to Dick per day?—" Twelve pounds:" Was that amount reduced?—" Yes; it was cut down to four pounds, but when the lion was shifted into the new cage he was put.back on his ordinary diet." Did you notice any change in the lion'a condition on the occasion of the'second attempt to shift it?—" Yes.". Did it-look as though.it'had been drugged? , ...... ' . ■ ■. His Honour: Well, have you ever seen a lion drugged?— Witness: Never, sir." . His Honour: How, then,'. Mr .'Dunn,, can you ask such questions •of this witness? Ho is not an .expert'.'.. . ', -. ".;■. "Judge's Opinion of "Bad Language." . i Witness:(Jackson) added that on.one occasion :after..he ; had. Ibeen .some- months with Bertling the.latter used,.bad language to him. ■'..',. ■;..' ... , Mr. Dunn: What,was the language? His Honour: How can this possibly be relevant,-Mr...Dunn ?:.'. : At another> time, continued Jackson, Bertling told-him! that '"he, had. a screw loose." . . : ■ ' '■ ':■''"''

Mr. Dunn: Reverting; to the other occa-sion.'-'ivhat'waS'th'e4anguage-used? Mr; Ostler: I object.most 6trongly.- , ■. Mr. Dunn: ,1 can't understand .what my friend,is afraid of.\,'The contention,' is that a man who uses bad language to his inferior is not competent to be the superintendent'of; a zooy. His Honour: It is not a case of fear; it is a matter, of irrelevancy.. . •-. . \ Eventually the question was put, and witness replied that' he (witness) did not swear, but that he had the language written down. "•■-.'.■ '' . ■ • His Honour: Yon are not swearing when you merely repeat the words of another. ■ ... Witness after a pause repeated the words. . Hi* Hononr: No donbt it is very wrong that a man should use the word "damn,,, but it is very commonly used. If men were to lose their positions for/' such lSngiiage, I am afraid there would be a good many offices vacant in the morning. (Laughter.) ..'■.■•'■ An engine-driver,.at the tramway powerhouse, David Beard, deposed that, one day last year, he 6aw Jackson holding an iguana, while Bertling was forcing-open the reptile's-jaws : with,a,mill file. When, the animal was placed back, in its cage, its jaws were bleeding. The Inspector of the S.P.C.A. Frederick Seed, inspector of the Society for the' Prevention of Cruelty to Animals, stated that Bertling came , to his house regarding *.Wirth's lioness, which .had been offered to the Zoo. Bertling had stated that it was suffering from paralysis, and ought ,to. be shot. Witness therern went down to the circus and saw animal in its cage.. He did not consider that the animal had paralyse, and he saw nothing to. warrant interference on his part. He had received complaints from citizens, and, on. inquiry, found justification for them..' He found a bittern confined in dirty cage, when he made an inspection with Bertling. He.had also had complaints about the flogging-of the camel, about the sealions,' and about sheep being. kept on a cement floor. ' ' '

Cross-examined: The Zoo had improved considerably.. • ■'■:;• ■. ■. ; • • George Forrest Glen,. superintendent of city reserves and formerly in charge of the Zoo, also stated that the Zoo had improved. 'i\ , ' . . To Mr. Ostler; The recent improvements might have been due to the fact that more money had-been spent.on the place.. "..:■.■' „ His Honour: I suppose the. City Council would not allow you or Mr.. Bertling or anyone else •to spend money in any way you liked?— Witness: /Certainly not." ■■ .'■ ■ .-■ ' ■ '■. "'• Up a Tree. William Mercer, carpenter, stated that he' had been present on both ; occasions when efforts were made to, move the lion to. a new cage, "On the first day," said witness, "they.thumped.it; poked it,. and hammered'it with a large stick, and they failed to move it" '-"■'■/ Mr. Wilford':- On the second occasion did you notice any change in the. condi; tion of the lion?— Witness: "Yes, he was very quiet." ■ , . ■ • • ; You assisted in the shifting of the lion?—"I tide.a knot in the rope." And then you left? You went , up a tree?-'!: did." (Laughter:) ■■ ■ You came to- the conclusion that a lion could not climb a tree?—'Tos.". Mr. Ostler: Did you climb the tree hurriedly?—"Oh, no; I was sitting on a branoh with another gentleman, Mr. Jones." (Laughter.) . Albert Brewer, caretaker of Kelburne Park, and' formerly an employee at Newtown Park, stated that he saw Wirth's lioness arrive at the Zoo in a packingcase. It remained in the case, and was sent back. to the circus the same day. When the lion was going away, Bertling remarked, 'Tm glad of that; he got it against my authority, and for that reason I shan t.haye it. • ... Arthur..Batchelor, bird dealer,' stated that during-the-early part of last year there ■ were lotters to the "paper complaining of the condition of things at the Zoo. There was a public agitation. His Honour: What is all this for, Mr. Dunn? ... Mr. Dunn: It is to show that the matter was one of public interest. . His Honour: I have already ruled that it was a matter of public interest,' concerning the conduct of a public institution. You were entitled to comment, if your comment was lair. Though no other paper commented,' you wero entitled to comment, so long as you kept within Hue bounds.

. The witness was then examined regarding the treatment of the birds at the Zoo. A Tourist Officer's Opinion. Frederick Moorhouse, an inspector U the Tourist Department, said that he had had considerable experience of the transport of animals, mentioning particularly experiences in Alberta, Canada. While at Eotorua, he had seen a consignment of wekas, kiwis, and paradise dunks, that were to be sent to the Duke of Bedford. Bertling was in charge of the birds, and fed them on slops from the sanatorium. He should have given them grain, to harden them for the long tpyage, and should- have put them in small coops. On that occasion witness remonstrated with Bertling,- and reported him. Mr. Ostler: Do you know the Wellington Zoo, Mr. Moorhouso?—Witness: "Yes." Do you consider that the arrangements are satisfactory?—"Oh, some of the exhibits are all right." Is there anything wrong?—"l would suggest that the deer might be placed in a more snitablo place. There is a clay bank alongside them." You don't mean to say that Bertling is responsible for a clay bank?—" No." And is that all you have to complain about?—" Yes." ' Keepers Acted "In the Dark," Wilmot Clifton • Quinnell, veterinary surgeon, and an M.8.C.V.5., said that he baa lived for seventeen years in India, ho had reported on'the Sydney Zoo in 189G, and had acted as lecturer to the Stock Department of New Zealand. He bad etudied zoology at the Kensington Natural History Museum, and had been connectod with the gTeat zoos at Lahore and Calcutta. He was instructed by the City Council to make full inquiry regarding the management of the Wellington Zoo. Ho ■ found that the food was wasted through the utensils being upset, and the methods of storing and preparation of food were primitive and unhygienic. There was no dietary scale, which was most essential for the instruction of the keepers, who'were frequently changed, and were "in the dark" as to the proper quantities to give the animals. Only 151b. of meat were ordered daily, and this wan insufficient. The methods followed by Bertling undoubtedly had something to. do with the deaths which occurred. ■ The dingoes were left out in the cold, the camel was wrongly housed in a shed inth a concrete floor, and its fpod was put into .the same place. Bortling's report regarding mortality was divided into seventeen heads, and gave the cause of death in every instance. He found, from his own observation,' thai the cause of death waa given incorrectly by Bertling in nine cases. Bertling admitted to him that he had used a file upon the iguana's mouth; setting'up gangrene. Regarding the stag, Bertling reported that it had died of maltreatment, but witness found, on examining it post mortem, that the cause of death hadbeen fright andshock. Two dead-eagles which he had inspected were covered with parasites. These should have had a dust bath, available for them, and a kerosene dressing would have helped, their trouble. When asked about the. peacock, Bertling at first denied, and later. admitted, that he had given the bird castor oil. '..'"':''

■ Mr. Wilford: Is Bertling a zoologist?— !Witness: "I should not say he was.". -In making your investigations you had constantly to discuse matters with him? -"Yes." ' ' ' '• \ Would you' say b* would be a witness of truth ?-"I should say "No." Mr. Ostler: You treated two camels?— Witness: "Yes." And both died?—"No; one died." ' ■'■' Well, I just "want to show that, even in the hands of an expert, a wild animal may not survive.— you must.remember that it was a hopeless case when it arrived." And that is 'precisely, the fact in regard to a large number of animals that were placed in Mr. Bertling's hands at the Zoo.—"May be." Witness- went on.to.say that it was. ?uite common to "cram". animals in zoos, t was a.; proper thing to do, but a wooden spoon should have been used, not a file. ' ' '.' .. -• ' -■•■■' This concluded the case for the defence. Bertling was recalled by-Mr; .Ostler to speak as regarded certain matters referred, to by, witnesses for.the defence. .' Mr. Ostler.made application that the case should be withdrawn from the jury, except as to-the assessment of damages. The ground of 'the 'application., was that the defendant, , having pleaded justification, had admitted that'the published statements of fact, if .true,, were libellous, and had failed. to prove.i the', truth! of those alleged facts. " t ... His Honour replied that he was-not prepared to do as Mr. Ostler asked.

■'To'-the Jury. ! Mr. Wilford, in addressing the jury, said that the case had aroused some publio interest, the plaintiff being a publio servant. If the comment made by the paper v was fair, it did not matter how empnatio and direct th« comment was. The main question for the jury was whether tho published statements'were a fair'expression of opinion. If' they decided that : the articles had' been fairly written and published, they would decide that the publication of the alleged libels was privileged. On the evidence tendered in defence, it was amply proved that the'city had lost both a leopard and. a lioness through "crass ignorance, stupidity, incompetence, and . pigheadness" on the part of Bertling. Hβ asked the jury to disregard Bertling's evidence wholly, as. being unworthy of belief. Bertling had admitted that he had written a letter to a man in-Australia about the keeper, Arthur, containing ■ statements about Arthur which were untrue. He would ask the jury to believe that Bertling, when he wrote that, letter, knew that, the statements he made were untrue, and he wished to convince the jury that Bertling had now deliberately gone into the witness-box and made falee statements, with a view to misleading the jury. He submitted that there was ample evidence that Bertling had been "pitchforked" into the position, at the Zoo, and that he had boasted of it.. ■■ Mr. Ostler, in summarising plaintiff's case, pointed out that, in order to succeed in his plea of justification,.the defendant must prove his published statements up to the hilt. If he proved something else altogether, that had nothing to do with the case, and must not be allowed- >to influence tho minds of the jury. ■ A Decided Summing Up.

In summing, up the . evidence, his Honour said that the articles were in attack on a man's. business capacity. If the jury decided that the ' articles tended to defamo a man and to set him up -for public ridicule, they, would como •to the conclusion that the articles were libellous.' Comment could not be fair unless it was based on facts, truly stated. A learned judge had stated that' fair comment must not contain imputations of an evil nature except so far as the facts, truly stated, warranted the imputation, if it was a reasonable-inference from those facts. That was. how the law had been laid down by one of-the English judges. What were the. charges, and what were the facts? -The.jury had to consider _ the positions ' of.-. the . parties. The plaintiff was , a man occupying a public position, and, if the facts were true, and the surroundings, true, and'the statements : published., bona 'fide, a paper would be justified in publishing articles, because public criticism was warranted. The plaintiff had to defend his business and his character. There were few appointments of the kind in the Dominion, and, indeed, there were probably not more than half a dozen zoological gardens in the Australian States and New.Zealand. Therefore, the kind, of employment which the plaintiff had been-brought up to was not easily obtainable in the colonies. If.the paper had stated what was true, it would mean, no doubt, loss of employment to the plaintiff here, and no possibility of employment for him in Australia. Apparently the paper had been sent to Australia, to people interested in zoological gardens, by some person in New Zealand, and the fact of the statements being read on the other side would tend to destroy his chance of getting a living. The first oharge had arisen out of the plaintiff's treatment of the young lioness offered to the Zoo by Wirth's circus. That incident was the beginning of the whole of the criticism. According to some ' witnesses, Bertling said that the lioness was paralysed. His evidence was that he considered that it suffered from rickets. Neither Arthur nor Seed, the inspector, saw any sign of rickets, but there was important evidence from an expert in charge of t!m Sydney Zoological Gardens on that point. From that statement it appeared that tho unimnl in Sydney was still suffering from tickets. Bertling did

not want the lioness, but Bates wanted it, and because Bates did not get his way apparently he had not spoken to Bertling since. To put it mildly, Bates got angry, and since that time Bertling had been "incompetent." If the jury considered that Bertling had been right as to the. condition of the lioness,' they must agree' that the statements made in the paper were incorrect, and ought not to have been published. Was the paper fair in suggesting that Bertling had "pulled the strings" m. order to obtain the appointment as superintendent at the Zoo! , He had done no more than any other man would have done in applying for the position. Was it reasonable to suggest that because a man was late in making his application he was "pitchforked" into the position, especially when he had testimonials from high authorities? It lay with, the defendant to givo the jury evidence of "crass ignorance, stupidity, incompetence, and pigheadedness" on the part of the plaintiff. Then, again, one of the articles had referred to Bertling as a "gaTrulous German galoot." The jury must note, those words. "There should be no charge against a. man because he is a German," said his Honour. '[We have learned a great deal, especially in science, from the Germans. You will have to decide, gentlemen of the jury, whether those were proper word 3 for a paper to use in criticising a man in a public It was said that "the efforts of Mr. Bates had been frustrated by an imposter," con.tin.ued the judge. Could tnere be anything stronger than , that ? It meant that ho was not competent at all to loot after the birds and animals placed under his care. It was for the jury'to say whether the words "severed his connection from the London Zoo," as printed in large type in one article, did not contain an innuendo that he'had been dismissed. Was not the death-rate of the animals one of the best tests of the competency, of a man in such a position? Was there any more complete vindication of his ability, ' more absolute even than ,that offered by his ovn evidence or the evidence of anybody else? They had to take particular 'notice 'of the evidence of Quinnell and Yuill, -who said that a fair dcath-rato was 20 per cent., whereas the mortality at the Wellington Zoo was not half as great. ■ His Honour went on to say that he would not bother to goj through the whole of the articles, or-deal with all the evidence.

Coming to the question of damages, his Honour .remarked that, if the jury awarded only nominal damages, it would be an indication that the action should not have been brought.. The jury had to remember that the statements had been published in a newspaper, that the defendant had come to the Court and still said that they were true, and that, by doing so, he practically charged: Bertling with perjury. : ' ' :,* • The Verdict. ' The jury retired at 5 p.m.' to consider the following issues drawn up by the judge:— ... '," 1. Were the articles mentioned in the statement of claim libels on the plaintiff? 2. Were the statements of fact in the said articles true? . ■ ..- ■■ 3. .Were the said articles fair comment? L What damages (if any) is .the plaintiff entitled to receive? . •-.-.' At six o'clock the jury returned with the'following answers. to the issues put to - them:-(l)Yes'; (2) No; (3) No; (4) .£1000; The jury added , the following rider:—"The jury desire to add that in their opinion the evidencfe has not only failed' to establish the charges agains l the plaintiff, but.'has fully proved his, competency for the -post he holds." •■ Mr. Wilford. asked- for .a.- stay -of eiecu-tion'-for. four days, to give defendant power to: move for a- new trial on the ground of misdirection by his. Honour. His Honour said, that there was no objection to that. The four days' stay would bo granted. '